Saturday, January 11, 2014
Finally, after years of controversy, the Supreme Court has taken a case on the constitutionality of Ohio's truth in political statements statute. (I almost erroneously typed law instead of statute.)
It isn't clear yet to me whether it will be a case about the merits, or about justiciability. The court below said plaintiffs lacked harm sono standing unripe.
P is represented by Jones Day. IJ, www.ij.org, and Cato, filed an amicus.
Paul Sherman and Ilya Shapiro et al on the brief.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/01/Amicus-brief-in-support-of-cert.-in-SBA-List-v.-Driehaus-IJ055755@xA6322.pdf
My guess is that the media will see this as a case about abortion, which, at one level, it is.
Plaintiffs Susan B AnthonyFund List wanted to put up billboards accusing a pro-life Dem of not being pro-life enough. He says it isn't true. They disagree. I think this is the right case at the right time. http://www.sba-list.org/newsroom/press-releases/supreme-court-takes-sba-list-first-amendment-case. I don't see Bopp's name anywhere. Free speech, Obama and abortion, his hot buttons.
http://www.politico.com/blogs/under-the-radar/2014/01/supreme-court-to-mull-right-to-lie-in-political-ads-180995.html
the court granted 7 other cases, not election-law related.
This case is Zwickler v Koota (1968) all over again. Here, the complainer has moved to Africa and is unlikely to file more complaints. But P's speech s still chilled.
Zwickler was a disclaimer challenge similar to Talley and McIntyre. It was dismissed as moot when the guy Zwickler was heckling was appointed a judge and stopped running for congress. But Zwickler's passion was about Israel, not the specific politician he didn't think was sufficiently pro-Israel.
The Court could have found his controversy was capable of repetition yet evading review, as in Ogilvie or Roe v Wade. Here, the one guy has moved to Africa, but there is no shortage of people who don't like Susan B's speech and will be happy to use the Ohio speech police to squelch it.
Here, the court below found unripeness rather than mootness, but they are related questions of justiciability.
I haven't yet read the cases below, but did SBA fail to argue under the Ohio Constitution? It's a lockstep jurisdiction, but still an important step in cases like these. It appears there is a state constitutional aspect, perhaps not preserved in the appeals, see this order http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2010cv00720/141638/66/
I may add to this post as it goes along.
The 6th Circuit opinion was unpublished. How often does that happen, that the Court grants cert over an unpublished opinion? http://www2.bloomberglaw.com/public/desktop/document/Susan_B_Anthony_List_v_Driehaus_525_Fed_Appx_415_6th_Cir_2013_Cou
Here is the ACLU brief below. http://www.sba-list.org/sites/default/files/content/shared/D.010_ACLUs_amicus_in_Support_of_TRO.pdf
I applaud the ACLU getting their brief in at the early stage instead of waiting till it reached the Supreme Court.
Maybe the Supreme Court will unanimously decide the case is justiciable and send it back without reaching the merits. See Hasen. Maybe the court will split 5-4 either because the case is a proxy for abortion/Obama or the liberal wing supports the idea of a speech police. Maybe one or more of the liberals will join the conservatives in reaching the merits. I think plaintiffs will win one way or another but I can't predict the details.
However, it is also possible that the conservative wing, or some of its members, will decide the case is nonjusticiable, just out of a general hostility to federal courts getting involved in state matters.
This could even lead to a very fractured decision with no majority.
The district court consolidated the two cases and granted the defendants' motions to dismiss. As to SBA List's suit, the motions made by the Commission and Driehaus were granted on standing, ripeness, and mootness grounds, and the Secretary's motion was granted on the bases of ripeness and Eleventh Amendment immunity.
Underlying questions include, is the speech true? If untrue, was it sincere? Is the statute facially unconstitutional? Is the case justiciable? The billboard has a prominent disclaimer, but that won't be directly at issue. I don't have all the claims sorted out, but it seems likely that plaintiffs were wrong, but sincere. That actually makes the case stronger, that is, it is a tougher case to win but more meaningful if they do win on the merits.
Driehaus's counterclaim for defamation lost but is still on appeal. Meanwhile Driehaus is in the peace corps.
There is a second plaintiff, COAST, and the unripeness claims have more oomph when applied to COAST. The Supreme Court could use the two plaintiffs as bookends, holding that SBA's claim is justiciable while COAST's isn't. Or maybe both of them are.
This would make a decent exam question.
It isn't clear yet to me whether it will be a case about the merits, or about justiciability. The court below said plaintiffs lacked harm so
P is represented by Jones Day. IJ, www.ij.org, and Cato, filed an amicus.
Paul Sherman and Ilya Shapiro et al on the brief.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/01/Amicus-brief-in-support-of-cert.-in-SBA-List-v.-Driehaus-IJ055755@xA6322.pdf
My guess is that the media will see this as a case about abortion, which, at one level, it is.
Plaintiffs Susan B Anthony
http://www.politico.com/blogs/under-the-radar/2014/01/supreme-court-to-mull-right-to-lie-in-political-ads-180995.html
the court granted 7 other cases, not election-law related.
This case is Zwickler v Koota (1968) all over again. Here, the complainer has moved to Africa and is unlikely to file more complaints. But P's speech s still chilled.
Zwickler was a disclaimer challenge similar to Talley and McIntyre. It was dismissed as moot when the guy Zwickler was heckling was appointed a judge and stopped running for congress. But Zwickler's passion was about Israel, not the specific politician he didn't think was sufficiently pro-Israel.
The Court could have found his controversy was capable of repetition yet evading review, as in Ogilvie or Roe v Wade. Here, the one guy has moved to Africa, but there is no shortage of people who don't like Susan B's speech and will be happy to use the Ohio speech police to squelch it.
Here, the court below found unripeness rather than mootness, but they are related questions of justiciability.
I haven't yet read the cases below, but did SBA fail to argue under the Ohio Constitution? It's a lockstep jurisdiction, but still an important step in cases like these. It appears there is a state constitutional aspect, perhaps not preserved in the appeals, see this order http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2010cv00720/141638/66/
I may add to this post as it goes along.
The 6th Circuit opinion was unpublished. How often does that happen, that the Court grants cert over an unpublished opinion? http://www2.bloomberglaw.com/public/desktop/document/Susan_B_Anthony_List_v_Driehaus_525_Fed_Appx_415_6th_Cir_2013_Cou
Here is the ACLU brief below. http://www.sba-list.org/sites/default/files/content/shared/D.010_ACLUs_amicus_in_Support_of_TRO.pdf
I applaud the ACLU getting their brief in at the early stage instead of waiting till it reached the Supreme Court.
Maybe the Supreme Court will unanimously decide the case is justiciable and send it back without reaching the merits. See Hasen. Maybe the court will split 5-4 either because the case is a proxy for abortion/Obama or the liberal wing supports the idea of a speech police. Maybe one or more of the liberals will join the conservatives in reaching the merits. I think plaintiffs will win one way or another but I can't predict the details.
However, it is also possible that the conservative wing, or some of its members, will decide the case is nonjusticiable, just out of a general hostility to federal courts getting involved in state matters.
This could even lead to a very fractured decision with no majority.
The district court consolidated the two cases and granted the defendants' motions to dismiss. As to SBA List's suit, the motions made by the Commission and Driehaus were granted on standing, ripeness, and mootness grounds, and the Secretary's motion was granted on the bases of ripeness and Eleventh Amendment immunity.
Underlying questions include, is the speech true? If untrue, was it sincere? Is the statute facially unconstitutional? Is the case justiciable? The billboard has a prominent disclaimer, but that won't be directly at issue. I don't have all the claims sorted out, but it seems likely that plaintiffs were wrong, but sincere. That actually makes the case stronger, that is, it is a tougher case to win but more meaningful if they do win on the merits.
Driehaus's counterclaim for defamation lost but is still on appeal. Meanwhile Driehaus is in the peace corps.
There is a second plaintiff, COAST, and the unripeness claims have more oomph when applied to COAST. The Supreme Court could use the two plaintiffs as bookends, holding that SBA's claim is justiciable while COAST's isn't. Or maybe both of them are.
This would make a decent exam question.
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